Search - 司法拍卖网 人民法院

. – of which 3.75% of p.a. was required to be paid annually in cash (“cash-pay interest”) and with the balance was capitalized each year (“capitalized interest”). ... He stated (at para. 345): [T]he phrase bona fide speaks to the fundamental character of the arrangements and requires that the arrangements reflect what one would reasonably expect arm’s length commercial relations to look like in the circumstances. … After noting that the taxpayers had not disclosed their debts incurred from their previous participation in tax shelters, he stated (at paras. 352-4): In my view, a borrower’s unilateral determination that a significant liability need not be disclosed on a loan application coupled with the failure of FT to insist on full disclosure is strong evidence of an absence of the sort of good faith and genuineness contemplated by paragraph 143.2(7). ... I also draw a negative inference … from... no one from FT testif[ying] regarding the borrowing arrangements with the Participants. ...

Under the investment component: The taxpayer purchased a minimum of 10 limited partnership units (the “LP Units”) in an Ontario limited partnership (the “2009 LP” – whose general partner was owned by a family trust of the owner of the promoter (“EquiGenesis”)) for $36,140 per LP unit, of which $32,000 was funded by a loan (a “Unit Loan,”) – which had a maturity date in February 2019, was secured by a pledge of the LP Units, bore interest at 7.85%, all of which in fact was funded with further cash advances from the lender (“capitalized interest”), who was a trust (“FT”)- and the balance was funded by the taxpayer. ... The approach taken in each of paragraphs 7000(2)(a) through (d) is consistent with the general proposition that an amount is not recognized as income under the ITA unless the amount can be ascertained with some reasonable degree of certainty. … In the absence of an actual crystallizing event there is simply no way of knowing the actual amount that the 2009 LP is entitled to be paid under the terms of the Linked Notes and therefore there is no amount to reallocate to avoid a deferral of income. ...

The [definition] … by no means speaks to specifically allowing different financial year-ends for Quebec purposes. The BCCA [in Veracity] … conclude[s] that because there is no uniform system of provincial taxation in Canada, then something may well “fall through the cracks. Such reasoning may well apply where provinces ascribe different tax treatment to the same category of revenue …. ...

Immediately after the Partnership’s first fiscal year end, the taxpayer’s share of the capital gain from the sale increased the ACB of its Partnership interest by $24.3M, and its CDA by ½ thereof, or $12.2M (or, in fact, $11.7M taking Partnership operating losses into account). ... Hogan J concluded (at para. 85), in confirming the Minister’s application of s. 245(2) to reduce the taxpayer’s CDA by ½ the amount of the s. 40(3.1) capital gain (thereby generating Part III tax subject to a s. 184(3) election being made): [T]he GAAR applies because the Avoidance Transactions were specifically designed to achieve a result that was, in the case of subsections 40(3.1) and 40(3.12), inconsistent with the rationale underlying each of those provisions and equally inconsistent with the rationale of the provisions that form part of the CDA Mechanism …. ...

. … [T]he intention of the parties was never to assign the options on shares, nor to subscribe for or redeem shares, but rather to transfer the sums to the foundations, and the legal act before us is that by which Des Groseillers had directed BMTC to pay those sums directly to the recipients, i.e., the foundations. … [T]he Court has reached the conclusion that the litigated transactions are not contemplated by Section VI, which comprises articles 47.18 to 58.0.7, quite simply because those provisions apply only where a qualifying person (BMTC) has agreed to issue or sell one of its securities. ... After quoting the equivalent of ITA s. 7(3)(a), he stated (at para. 73): Thus … TA article 422 cannot be engaged in order to fill in the rules for computing income provided in Section VI. ...

However, notwithstanding this favourable finding, the taxpayer was found by the Tax Court not to have established that he did not have a services PE given an evidentiary failing: the figures that he had provided to the Tax Court for the active business revenues generated through the LLC were for calendar 2012, whereas the 50% Treaty test was to be applied to the 188 day period straddling the two years – and there was no evidence of what the U.S. ... As to the evidentiary finding of the Tax Court (paras. 26, 28): Lawrence Wolf … did not adduce any evidence with respect to the actual timing of the earning of the revenue in the United States. … As a result, Lawrence Wolf failed to establish that the Tax Court Judge made any palpable and overriding error in finding that there was insufficient evidence for him to conclude that 50% or less of the gross active business income from Lawrence Wolf’s enterprise was earned in Canada during the period that he was present in Canada. ...

. … However, the equitable rights of partners under a trust of partnership property differ substantially from the equitable rights created by the declarations of trust in the 2013 Deeds. ... [T]he only right that the partners have, both before and after dissolution, in relation to each asset is a right to the account and distribution after sale of the proceeds of that asset …. Prior to the 2013 Deeds …[s]ince there was no provision to the contrary in either of the partnership deeds, Maria held the freehold titles of each partnership on trust for the partners. … Each partner had a non-specific interest in relation to all of the partnership freehold titles (as well as all of the current assets of each partnership) with a right, upon dissolution, to compel the sale of the freehold titles in order to realise a fund from which at the conclusion of the winding up a vested share could then be claimed. ...

The Tax Court confirmed CRA’s application of s. 245(2) to reduce the taxpayer’s CDA by ½ the amount of the s. 40(3.1) capital gain, thereby generating Part III tax unless an s. 184(3) election was made. Noël CJ indicated (at para. 78) that “declaring the capital dividend before electing the deemed loss was not, in and of itself, objectionable,” after having noted in this regard (at para. 76): … [T]he existence of a positive CDA balance, however generated, is the sole condition that governs a taxpayer’s right to declare a capital dividend. ... In both cases, the undesirable tax attributes that had to be created in order to obtain the tax benefit were isolated from the desirable ones and left to be forgotten without ever having any repercussion. … This defeats the rationale that underlies the CDA regime because it allowed for the payment of a $12,000,000 capital dividend in circumstances where the $12,000,000 deficit that had to be created in the process will never be accounted for. ...

Before adopting the primary judge’s conclusion that the taxpayer had a habitual abode in both countries, the Court stated (at paras. 29-30): [T]here is no warrant … for imputing that the habitual abode of a person is the place where the individual has spent more days. … [T]here is no warrant to give the expression “habitual abode”… a meaning other than the meaning conveyed by the ordinary meaning of the phrase. ... It was this Thai sourced income stream, derived from Mr Pike’s ongoing employment there, which not only supported his life and lifestyle there but also, all the more so after Ms Thornicroft’s employment with Ernst & Young came to an end, supported his family in Australia, including him, when he was able to be with them. ...

The majority reasons (for Middleton and Steward JJ – with whom Thawley J agreed in the result) found that for the transfer–pricing purposes at issue, it was posing the wrong question to ask “whether an arm’s length party would have agreed to the amendments, given the pre-existing terms of trade” (para. 188), and that the correct question was simply whether “the pricing formula established by those [amended] terms did not differ from those formulae which might be expected to have operated between independent enterprises dealing wholly independently with one another in the copper concentrate market at the time” (para. 191). ... In finding this approach to be insufficiently nuanced, the majority stated, that in determining the arm’s length consideration: “one should include all of the objective circumstances of the actual … mine” and the “objective circumstances of the copper concentrate market as at February 2007” (para. 179) “it would be appropriate to exclude any considerations that are the product of C.M.P.L.’s non-arm’s length relationship with G.I.A.G. and the broader Glencore Group” which “would include whatever attitude or policy C.M.P.L. had formed about the issue of risk when selling to G.I.A.G” (para. 180) “C.M.P.L. … could legitimately adopt a more conservative approach to risk so long as it was commercially rational to do so, and it is what an independent party dealing at arm’s length might reasonably be expected to have done” (para. 181) “the possibility of a range of arm’s length outcomes, each of which would be sufficient to answer the statutory test, is supported by authority” (para. 183) ...